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Legal Scholars: Abbas' Emergency Government is Illegal

Legal Scholars: Abbas' Emergency Government is Illegal

Palestinian President Mahmoud Abbas has trampled on the Basic Law in a totalitarian manner when he appointed an emergency government to replace a Hamas-led unity cabinet without parliamentary approval and suspended articles in the constitution, the framers of the Palestinian code of laws and experts have agreed.

The president's powers were "intentionally and explicitly very restricted," Anis al-Qasem, one of two framers who were appointed by late president Yasser Arafat to draft the Basic Law of the Palestinian Authority, told Reuters in an exclusive interview wired Sunday, July 8.

Abbas sacked the Hamas-led unity cabinet on June 14 and declared a state of emergency in the occupied West Bank and the Gaza Strip after Hamas had taken over the Strip in response to what it said atrocities and violations committed by Fatah militants against its followers.

Under the Basic Law, Abbas does have the power to dismiss Prime Minister Ismail Haniyeh.

But presidential emergency decrees granted to Abbas by law do not mean he has the right to form an emergency cabinet or suspend articles in the constitution without a parliamentary approval.

"Ruling by decree doesn't mean he can suspend or change the constitution," independent Palestinian lawyer Eugene Cotran, who co-drafted the Basic Law with Al-Qasem, told Reuters.

Cortan said a parliamentary vote on any new government is a must despite the fact that half of the Hamas lawmakers, who formed a parliamentary majority since trouncing the once dominant Fatah in legislative polls in January 2006, were abducted by Israel.

Al-Qasem agreed with his fellow lawyer.

Article 79 stipulates "neither the prime minister nor any minister shall assume his office except after a vote of confidence" from the legislature, he noted.

Hamas and Fatah leaders agreed in March to form a unity government following an historic power-sharing agreement brokered by Saudi Arabia, with the aim of ending months of bloody Fatah-Hamas political rivalry.

No less than 230 people have been killed in on-and-off fighting between the two sides since Hamas was elected to office.

Caretaker GovernmentThe two veteran lawyers said the Basic Law prescribes that Haniyeh's dismissed unity cabinet remain the caretaker administration until Abbas secured parliamentary approval for a new government.

"What is clear is that ... the Haniyeh government, doesn't fall during the period of an emergency," Cotran said.

Al-Qasem added that under Article 78 "the dismissed government would continue to run the affairs of government temporarily as a caretaker government until the formation of the new government in the manner provided by the Basic Law."

He reiterated that the Basic Law has no specific provisions for an "emergency" government without parliamentary approval.

Nathan Brown, a professor who has advised the Palestinians and the Iraqis on new constitutions, echoed a similar legal opinion.

"These are absolutely and clearly black and white violations. He has no authority whatsoever to appoint an emergency government," he told Reuters.

Azmi Shuaibi, who sat on a parliamentary committee on the Basic Law, defended Abbas's power to suspend articles in the constitution.

He said Article 113, which stipulates that the legislature "shall not be dissolved or suspended during the emergency situation, nor shall the provisions of this chapter be suspended," meant he "can suspend articles in other chapters".

But Al-Qasem dismissed Shuaibi's argument as feeble.

"They are obviously looking for the slimmest argument to build a mountain on and dry the ocean. They are destroying the foundation on which the Basic Law is laid," he told Reuters.

He warned against making "such wild implication ... particularly where the implication could easily lead to dictatorship -- the system that the Basic Law was intended, in all its provisions, to guard against".

West's Reward

Al-Qasem and Cortan said the West also played a part in "destroying" the foundation of the Basic Law after it had punished the Palestinians with crippling economic boycott for choosing Hamas in a democratic election.

"The Palestinians were immediately rewarded by the 'democracies' of the world with an unprecedented crippling siege as a punishment for the exercise of their democratic right. ... No constitutional draftsman would anticipate such a situation," said Al-Qasem.

Washington, which imposed the boycott when Haniyeh took office in March 2006, embraced as "legitimate" the cabinet Abbas appointed in the West Bank under former finance minister Salam Fayyad.

The European Union also "emphatically" backed Abbas's actions as "in keeping with the Palestinian Basic Law".

Law professor Ahmad Elkhaldi, who worked on drafts of the Basic Law and served as justice minister under Haniyeh, said he was concerned Palestinian democracy, long touted as a goal by Washington, was "in retreat."

"We have to work inside the restrictions of the Basic Law, not put the Basic Law aside and do whatever we want," Elkhaldi told Reuters, with a much-thumbed copy of the Basic Law lying beside him on his desk at Nablus's al-Najah University.